47 US Senators Send Iran’s Leader an Unnecessary(?) Primer on How US Constitution Works

by Julian Ku

Most of the US Senate’s Republican membership has signed an open letter to Iran’s leaders “informing” them about the nature of the U.S. constitutional system with respect to international agreements.   It is actually a very accurate statement of US foreign relations law, even if it is a little strange and potentially intrusive into the President’s foreign affairs power. It may also concede more than the Senators may have wanted to on the constitutionality of the proposed Iran deal.

Here are the key paragraphs in the letter;

[U]nder our Constitution, while the president negotiates international agreements, Congress plays a significant role in ratifying them.  In the case of a treaty, the Senate must ratify by a two-thirds vote.  A so-called congressional-executive agreement requires a majority vote in both the House and the Senate….Anything not approved by Congress is a mere executive agreement.

What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.  The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

OK, there is nothing here that is incorrect, as a matter of law, and this is not surprising since the letter was apparently drafted by Sen. Tom Cotton of Arkansas, a very smart and knowledgeable constitutional lawyer. The letter does raise a couple of important constitutional issues.

First, a letter sent directly to a foreign leader on a matter which is currently under negotiations with the U.S. could be criticized as an unconstitutional interference in the President’s inherent  power to conduct foreign affairs.  Certainly, it is very unusual.  Imagine if the U.S. Senate had sent a letter to the Iraqi leaders in 2007-8 that Congress was going to have to approve any US-Iraqi alliance or defense cooperation treaty.

In any event, I actually think this letter skirts, but manages to avoid, any unconstitutional interference.  Phrased merely as a letter “bringing attention” to the U.S. constitutional system, the letter does not state U.S. policy, nor does it make any statement on the question of policy.

The most troubling line of the letter is: “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.  ” But this is indisputably correct as a matter of law.

Maybe the strongest criticism of the letter is simply that it need not have been sent.  The only possible purpose of sending the letter is to discourage the Iranians from actually concluding an agreement, since presumably the Iranians can read US foreign relations law textbooks (or even blogs) without the help of the US Senate.  But then again, maybe they don’t. If the Iranians are somehow deluded into thinking a sole executive agreement could survive a Republican president in 2016, it is probably best for all concerned that they know the truth now.

Second, and on the other hand, I do wonder if the senators here may have conceded more than they wanted to here.  There is still a plausible constitutional argument out there that President must submit the Iran nuke agreement to either the Senate (as a treaty) or to Congress as a whole.  The letter all but concedes that the President can indeed conclude a sole executive agreement with Iran on this matter.  Doesn’t this undercut the Senators’ argument that they should, indeed, must have their say on this deal?  (also, they only got 47 votes! There are 55 Republican senators, plus some Democrats who also oppose the Iran deal. Do they not agree with this statement of law?).

In any event, I can’t recall a letter of this sort from recent (or even older) U.S. history.  Readers should feel free to add examples in the comments.  I wonder if the Iranians will send a letter back?


13 Responses

  1. Surely such action in by-passing the President is entirely on a par with issuing an invitation to the Israeli Prime Minister to address Congress? Does the Constitution not address this situation at all?

  2. I am surprised that the Republicans are prepared to make such a PRECEDENT. By doing so, they give up any possible argument that anyone hereafter making such a statement directly to a foreign government is “interfering” (to quote John Boehner). The Constitution gives the EXECUTIVE the authority to negotiate, and the Senate to power to advise and consent by a 2/3 vote. The House has no Constitutional role in treaties. This basically sounds like the Party of NO has learned nothing, whether Cotton is a Constitutional scholar or not.

  3. While the Constitution is confusing, Ambassadors from the Middle East that observed the fights in 2007 over Iraq doesn’t really don’t need a letter. See, e.g., http://www.cnn.com/2007/POLITICS/04/26/congress.iraq/

    The fact that Petraeus later succumbed to a honeypot and is now facing prison is warning enough…

  4. Correction:

    While our aging Constitution is confusing, Ambassadors from the Middle East that observed the fights in 2007 over Iraq really don’t need a letter. See, e.g., http://www.cnn.com/2007/POLITICS/04/26/congress.iraq/

    The fact that Petraeus later succumbed to a honeypot and is now facing prison is warning enough…

  5. Whether the forthcoming comprehensive agreement would require ratification would surely depend on its form. The Joint Plan of Action of 2013 did not appear to have been shaped as a treaty, and one wonders whether the comprehensive agreement is going to be different.
    Be that as it may, there are of course alternative routes available to the US. One, which would not endear President Obama to the Republicans, would be to circumvent a (potential) constitutional problem by having the Security Council enact whatever agreement is reached.
    Since the Security Council would be needed anyway to modify or terminate its sanctions, its members could follow its precedent on the Special Tribunal for Lebanon, SC Resolution 1757 (2007), and bring into force an agreement that is not ratified by one of the intended parties.
    Although I have my doubts whether this is something we want the Security Council to do and whether this circumvention of the requirement of consent to treaties is lawful, the precedent is there for all to see.

  6. Contrary to the letter’s statement (and Prof. Ku), the Senate does NOT ratify U.S. treaties. The Senate only provides its advice and consent. Only the President can ratify a treaty by, for example, exchanging the instrument of ratification with the other party or depositing the instrument with the UN General Secretary.

    Furthermore, not all treaties signed by the President require Senate consent. Those treaties that govern issues over which the President exercises exclusive constitutional authority (e.g., foreign state recognition and ambassadors) do not need the Senate’s consent. See U.S. v. Belmont, 301 U.S. 324.

  7. Francisco is absolutely correct — neither Congress nor the Senate “ratify” treaties. Having been notified of the consent of 2/3 of the Senate regarding a putative treaty, the President (or a new President) can refuse to ratify. The Senators who signed on to this are seemingly as constitutionally-ignorant as the Chief Justice in Medellin (who declared in manifest error that Congress ratifies and that the Senate ratifies treaties)!
    But Francisco, it is better to use the general phrase “international agreement” with respect to congressional-executive agreements and sole or presidential executive agreements to avoid confusion about treaties and such under our domestic legal process.

  8. p.s. I think that Iran should “send a letter back” that points out the complete lack of understanding of Article II of the U.S. Constitution on the part of the Senators who signed the letter — but Iran is probably diplomatically smart enough to refrain from what would be a delightful lesson in the public media once such a response was sent.

  9. The bald statement “I the case of a treaty, the Senate must ratify it by a two thirds vote” is simply wrong.

    Historically there has been a long string of precedents (going back to 1829 & 1833) that distinguish between “self-executing” and “non-self-executing” treaties. The former are those that constitute international law commitments along with automatic binding authority as domestic law, while the latter constitute international law commitments but ONLY have binding authority as domestic law IF the Congress passes enabling legislation.

    It could be that the letter is correct *in this particular case*, but the statement itself is wrong as a general proposition

  10. Ignore my previous comment 🙁 (brain malfunction)

  11. I’m surprised.. all are talking about U.S Laws!!! Since six countries negotiate the agreement, it is international agreement, then it is international law matter not a U.S Laws!!!

    I do not think Iran cares about U.S legal system and they should not do so.

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